NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee John J. McGovern when award was rendered.
SYSTEM FEDERATION NO. 109, RAILWAY EMPLOYES'
DEPARTMENT, AFL - CIO
(Carmen)
It is respectfully submitted that the National Railroad Adjustment Board, Second Division, is required by the Railway Labor Act to give effect to the said agreement, which constitutes the applicable agreement between this carrier and the Brotherhood of Railway Carmen of America and to decide the present dispute in accordance therewith.
The Railway Labor Act, in Section 3, First, subsection (i) confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out of "grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions." The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the agreement between the parties to it. To grant the claim of the organization in this case would require the Board to disregard the agreement between the parties, hereinbefore referred to, and impose upon the carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to the applicable agreement. The Board has no jurisdiction or authority to take any such action.
The carrier has conclusively shown that there has been no violation of the applicable agreement in the instant case and that the employes have totally failed to sustain the burden of proof imposed upon them.
Therefore the carrier respectfully requests your Board to dismiss or deny the claim of the employes in this matter.
The carrier demands strict proof by competent evidence of all facts relied upon by the employes, with the right to test the same by cross-examination, the right to produce competent evidence in its own behalf at a proper trial of this matter, and the establishment of a proper record of all of the same.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claim is presented here for coach cleaners on days specified, and for compensation at the punitive rate of pay, when it is alleged by the Organization that Carrier assigned Car Inspectors to perform the cleaning of coaches at various points through-out Carrier's line. The work, it is contended by the Organization, belongs to Coach Cleaners, and as a consequence the action complained of, constitutes a violation of the effective Agreement between the parties.
Carrier in its defense relied on the National Agreement of August 21, 1954, more specifically Article VII thereof. The Organization rightfully disputed this, claiming that the Reading Line was not a signatory to this specific section. Carrier later agreed with this position. Additionally, Carrier argues that the Organization has failed to show that Coach Cleaners have the exclusive right to perform the work. Indeed Carrier had stated that past practice has incontrovertibly shown that other employees have over the years performed the work in question.
It is axiomatic that the Organization has the burden of proof in order for this board to render a sustaining award. We find no substantial evidence in this record to warrant a conclusion in favor of the Organization. We will deny the claim.